VOLUME 1                                                   SPRING 2021                                                 ISSUE 2

The Syin & Sern Law Review

ARTICLE

FREEDOM TO CHOOSE MARITAL PARTNER: STILL A FAR-FETCHED IDEA?

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Kritika

DOI

https://doi-ds.org/doilink/06.2021-26666837/SYIN & SERN/V1/I2/A1

 

Abstract

A woman has the right to control her body and mind but choosing the partner of choice is denied or systematically discouraged in the shadow of approval of the community and families. In South Asian countries, there hardly had been any social practice of seeking the consent of women before marriage. However, with the increased educational level, the consent of women is promoted but still used as a formality only. The Constitution of India provides special provisions for protecting women’s freedom which has been respected by the Supreme Court and High Courts through multiple judgments and has tried to transform the patriarchal traditions of the society. However, this transformative approach adopted by Courts has not been able to reach the ground realities and the beliefs of communities. The legal support in favor of this right is often moulded to restrict women’s access to it.

 

In this paper, the researcher has looked into various judgments to figure out the position and role of Judicial Courts in upholding women’s right of choosing their partner and their self-autonomy. The researcher has outlined the socio-cultural attributes such as caste and religion in affecting such rights and has studied the judicial verdicts on inter-religion/ inter-caste marriages and their implication and has examined the legality and desirability of the recent Uttar Pradesh Prohibition of Unlawful Religious Conversion Ordinance, 2020 to get a complete picture.

​Referred Citations

  1. Vikram Seth, “A Suitable Boy” (1993)

  2. Susan Meld Shell, “Kant and The Limits of Autonomy”, Harvard University  Press, 2009

  3. Bruce Baum, "J. S. Mill on Freedom and Power." Polity 31, no. 2 (1998): 187-216.

  4. Joel Feinberg, an American political and legal philosopher, categorized liberty limiting principles as harm principle, offence principle, legal moralism and legal paternalism.

  5. Shakti Vahini v. U.O.I., AIR 2018 SC 1601

  6. Available at https://www.livelaw.in/right-choose-life-partner-fundamental-right-consent-family-community-clan-not-necessary-marriage-two-adults-sc-read-judgment/?infinitescroll=1

  7. Swayamvara was a customary practice in ancient India where a girl of marriageable age chooses a husband from a group of suitors. Here, svayam means 'self' and vara means 'groom' in Sanskrit.

  8. Atasi Mahapatra, Gender equality and ancient Indian culture: A study, International Journal of Humanities and Social Science Invention (IJHSSI) ISSN (Online): 2319 – 7722, ISSN (Print): 2319 – 7714 www.ijhssi.org ||Volume 7 Issue 08 Ver. III, August. 2018 , PP 22-26

  9. Dr. Kavita A. Sharma, “Mahabharta through the eyes of Women”, Reference from the Mahabharta of Krishna- Dwaipayana Vyasa, Delhi, (5th Edition, 1991).

  10. George Buhler, Sacred Books of the East Laws of Manu, 25 (1886)

  11. Ganganatha Jha, Manusmriti with the Commentary of Medhatithi, Wisdom Library 2 (1920)

  12. The story of lord ram’s marriage part 1, available at https://tulsidas-ram-books.weebly.com/uploads/2/1/7/4/21746472/42_a__the_story_of_lord_rams_marriage-part_1.pdf

  13. “When they reach their term, place not difficulties in the way of their marrying the husband of their choice if it is agreed between them in kindness” (Qur’an, 2:232)

  14. Sahih al-Bukhari 6968; Muslim, 1419

  15. J.Sheela, Women’s marriage in India: Cultural Practices, Age and Mate Selection in Delhi, India, Dominant Publishers & Distributors (2003).

  16. A. Saktanber, Living Islam: Women, Religion and the politicization of Culture in Turkey, London I.B Tauris (2002).

  17. Van der Vossen, Bas, "Libertarianism", The Stanford Encyclopedia of Philosophy (Spring 2019 Edition), Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/spr2019/entries/libertarianism/>.

  18. Article 21- No person shall be deprived of his life or personal liberty except according to procedure established by law.

  19. (2011) 6 SCC 405

  20. AIR 2006, 5 SCC 475

  21. AIR 2018 SC 1601

  22. Liberty, taking the word in its concrete sense consists in the ability to choose

  23. (2018) SCC OnLine SC343

  24. Priyanshi @ Km. Shamren and ors. v. State of U.P., decided on 23.09.2020.

  25. Smt. Noor Jahan Begum @ Anjali Mishra and Another vs. State of U.P. and others, decided on 16.12.2014 and Priyanshi @ Km. Shamren and others v. State of U.P. and Another, decided on 23.09.2020.

  26. Salamat Ansari & 3 Others v State of U.P. & 3 Others, Crl. Mis. Writ Petition No- 11367 of 2020

  27. The Leaflet, 23rd November 2020, available at https://www.theleaflet.in/single-judge-decision-against-conversion-just-for-marriage-bad-law-says-allahabad-hc-state-interference-in-personal-relationships-an-encroachment-on-right-to-freedom-of-choice-of-two-adults/#

  28. Uttar Pradesh Ordinance No. 21 of 2020, promulgated on 27th November 2020.

  29. Mahir Desai, Love Jihad: The Ordinance and Constitutionality, available at 

  30. https://cjp.org.in/love-jihad-the-ordinance-and-constitutionality/

  31. Siddharth Vardarajan , Raising ‘Love Jihad’ Bogey, Yogi Threatens Death for Men who ‘Hide Identity, Disrespect Sisters’, The Wire, 01-11-2020, available at https://thewire.in/communalism/raising-love-jihad-bogey-yogi-threatens-death-for-men-who-hide-identity-disrespect-sisters

  32. Sreenivisan Jain and Mariyum Alavi, With No Credible Evidence, "Love Jihad" Cases In Kanpur Crumble, The NDTV,  November 06, 2020, available at https://www.ndtv.com/india-news/with-no-credible-evidence-love-jihad-cases-in-kanpur-crumble-2321766

  33. The Wire (2018),  NIA Finds No Evidence of 'Love Jihad' After Kerala Probe, October 18, 2018, available at https://thewire.in/politics/nia-love-jihad-kerala-hadiya

  34. DNA India (2020) 'Love Jihad' not defined in laws, no such case reported by central agencies: Govt tells Lok Sabha, Feb 5, 2020, available at

  35. https://www.dnaindia.com/india/report-love-jihad-not-defined-in-laws-no-such-case-reported-by-central-agencies-govt-tells-lok-sabha-2812257

  36. Uttar Pradesh Prohibition Of Unlawful Conversion Of Religion Ordinance, 2020

  37. ibid

  38.  ibid

  39. supra note 28

  40. London: Longman, 1998

  41. Joel Fenberg, “Harm to Others: The Moral Limits of the Criminal Law”, Oxford University Press, 12, New York.

  42.  2018 SCC OnLine SC 1676

  43. Vakasha Sachdev, ‘Love Jihad’: A Homage to Nuremberg & Anti-Miscegenation Laws, The Quint, Nov 22, 2020, available at

  44. https://www.thequint.com/news/law/love-jihad-laws-india-nuremberg-law-anti-miscegenation-us-similarities

  45. Shakti Vahini v. U.O.I., AIR 2018 SC  1601

  46. Jessica Flanigan, Seat Belt Mandates and Paternalism, Journal of Moral Philosophy, 2017, Vol. 14: Issue 3, pp 291-314, available at https://doi.org/10.1163/17455243-46810050

  47. Leela Seth, “Talking of Justice: People’s Rights in Modern India”, Aleph Book Company.

  48. “Sagotra marriage” means marriage within the gotra. Here, the word 'sagotra' is formed by the words 'sa' and 'gotra', in which 'sa' means the same or similar and ‘gotra’ refers to people who are siblings and marrying someone from the same gotra is frowned upon in Indian society.